Welch v. Barrows

Supreme Court of Vermont

Welch v. Barrows

218 A.2d 698, 125 Vt. 500, 1966 Vt. LEXIS 219

CourtSupreme Court of Vermont

DecidedApril 5, 1966

Docket86

StatusPublished

Cited by22 cases

This text of 218 A.2d 698 (Welch v. Barrows) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Welch v. Barrows, 218 A.2d 698, 125 Vt. 500, 1966 Vt. LEXIS 219 (Vt. 1966).

Pincite

Opinion

Keyser, J.

This is an action in equity brought by the plaintiff to obtain a mandatory injunction to enforce a restrictive agreement existing on land owned by the defendants. The plaintiff seeks the removal of three cabins from defendants’ land on which plaintiff claims the restriction operates.

The court, after hearing, entered decree for the plaintiff on its findings of fact. The case is here on appeal by the defendants.

The controlling issue in controversy is the location of the area upon which the building restriction applies. Defendants concede this area is “all we are interested with in this case.”

In 1870 one Carlos Kimball owned a farm of about 200 acres in the Town of Ferrisburg, Vermont. A portion of the land bordered on Lake Champlain. Kimball divided land in an area called Kimball’s Point into shore lots which were later sold. In deeds of these lots, Kimball included an agreement that no buildings were to be built on a lot which he retained along the shore of the lake in the Point area.

The point is in the northwesterly section of the area. The lake then forms a bay area down shore, called Kimball’s Báy. The land up shore runs slightly to the northeast. The shore lots are laid out 5 rods wide along this shore and have a depth of 8 rods. Lot No. 1 is nearest to the Bay area.

The shore lots abut on a roadway about 33 feet wide below which are several lots called Back Lots. Back Lot No. 1 is opposite shore Lots Nos. 1 and 2.

We are concerned only with the land which lies westerly and northwesterly of Lot No. 1 and Lot No. 1 Back to the lake-Bay and Point *502 areas. A survey plan of the Kimball’s Point area, an exhibit in the case, was recorded September 21, 1909 in Book 24, Page 118 of the Ferrisburg Land Records. To add clarity to the opinion we have reproduced a sketch not to scale, from the survey to show the lots involved and the restricted area referred to in the Kimball deeds.

The defendants became owners of the remainder of the Kimball farm in 1950 which included this land on the lake shore. In early December 1961, they commenced the construction of three cabins on land lying between the lake and the westerly property line of Lot No. 1 and Back Lot No. 1. In February 1962, the plaintiff learned of this and objected to it by letter from his attorney to the defendants. Construction of the cabins was completed the following spring.

There is no disagreement between the parties that the clause in question in the several deeds is a restrictive agreement. As such, it is enforceable in equity. Queen City Park Assoc. v. Gale, 110 Vt. 110, 116, 3 A.2d 529.

This brings us to the real and fundamental question — the location of the area on which the restrictive agreement applies.

Paragraph (3) of the decree is material to the import of Paragraph (4) so we quote both.

“(3) The defendants, their agents, servants, heirs, executors, administrators and assigns are perpetually restrained and enjoined from erecting or causing to be erected any buildings or structures whatsoever on Kimball’s Point and from creating or causing to be created thereon any obstruction or hindrance to the use by plaintiff, and his heirs and assigns of the same, pursuant to plaintiff’s various easements, rights of way and servitudes therein, which are described in Findings (6), (7), (8) and (9) of the Findings of Fact made in this cause.”

“(4) For the purpose of this decree, Kimball’s Point is defined as an area shown on a map entitled ‘Survey of Kimball’s Point’ recorded in Volume 24, of the Town of Ferrisburg Land Records at page 118, and not divided into building lots on said plan.”

The plaintiff claims support for Paragraph (4) in Findings Nos. 12. and 13. The pertinent part of No. 12 reads: “. . . (T)he land on Kimball’s Point not heretofore sold as a camp lot, has been used in common by all owners of camp lots as well as the owner of the farm.”

The opening sentence of Finding No. 12 says, “On that property still owned in fee by the defendants, located on Kimball’s Point Grounds three camps were erected subsequent to November 1, 1961.”

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